The Obama appointees who could save net neutrality


President Obama gestures while nominating Patricia Ann Millett, an appellate lawyer, to become a federal judge, during an event in the Rose Garden at the White House, June 4, 2013 in Washington, DC. (Photo by Mark Wilson/Getty Images)

When one of the country's most powerful appeals courts heard oral arguments on net neutrality in September, it looked as if the government's rule against Web traffic discrimination might be headed for the trash bin. But the successful confirmation of the first of three Obama nominees to the D.C. Circuit court improves the regulation's chances of survival.

With the Senate's recent rule change on filibusters, Patricia Millett has become the first judicial nominee to benefit from approval by simple majority. By the end of the year, the body could approve Obama's two remaining nominees to the court, Nina Pillard and Robert Wilkins. Altogether, the court would then have seven members appointed by Democratic administrations to the four that were appointed by Republican presidents (although the D.C. Circuit also has a handful of semi-retired judges appointed by Ronald Reagan and George H.W. Bush that can choose to rule from time to time).

The net neutrality case is being decided by a three-judge panel. Verizon, which is challenging net neutrality, charges that the FCC lacks the authority to regulate, and by most accounts the judges seem sympathetic to the argument. One of them appeared intent on overturning the regulation. Another seemed to defend it, or at least not criticize it. The third, Judge David S. Tatel, said Internet providers should be able to charge for faster service so long as they didn't wind up blocking service entirely. (There's some question as to whether this is how the FCC's new chairman, Tom Wheeler, also interprets net neutrality.)

At this point, there's no stopping the panel from ruling the way that it wants; many experts expect a 2-1 outcome for Verizon with Judge Judith W. Roberts dissenting. But the addition of three Democratic judges to the court would boost the FCC's chances on appeal. If enough judges from the full court vote to rehear the case, the FCC would have another chance, this time to more sets of potentially sympathetic ears.

"If you think this is divided between Republicans and Democrats, and you had half the court siding with [Judge Laurence H. Silberman] to not rehear … in theory, if you had three more Democrats voting to rehear the case, you'd then have the votes for it," says Harold Feld, senior vice president of the pro-net neutrality group Public Knowledge.

A lot has to fall into place for the FCC to eke out a win. Just because the court may soon be filled with Democratic judges doesn't mean they all agree on what the law means. After all, Tatel, the supposed swing vote in the current case, was a Clinton appointee. And Wheeler, depending on his views, could let the matter drop. But facing more left-leaning judges doesn't seem likely to hurt if Wheeler decides to press forward.

Most have been expecting a decision from the panel this month, but Feld says he doesn't think the case will move until January. Either way, once it comes down, the FCC will have 30 days to file for a rehearing.

Brian Fung covers technology for The Washington Post, focusing on telecommunications and the Internet. Before joining the Post, he was the technology correspondent for National Journal and an associate editor at the Atlantic.

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Brian Fung · December 10, 2013